Line to take - LTT7 - Town and Country Planning Act 1990

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  • FOI/EIR: EIR
  • Section / Regulation: reg 2
  • Issue: Town and Country Planning Act 1990
  • Source: Information Tribunal
  • Details: Kirkaldie / Thanet District Council (4 July 2006)
  • Related Lines to Take: LTT82
  • Related Documents: FS50069727, EA/2006/001
  • Contact: EW
  • Date: 04/08/2006
  • Policy Reference: LTT7
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT

Line to take

Agreements under section 106 of the Town and Country Planning Act 1990 can be regarded as “environmental agreements” as listed in regulation 2(1)(c). If the agreement affects or is likely to affect any of the elements referred to in reg 2(1)(a) and factors referred to in reg 2(1)(b) or is designed to protect those elements, the information within the agreement is environmental and subject to the EIR.

Legal advice relating to the enforceability of s.106 agreements (as well as land usage and other matters) will also be environmental information. No explanation of this is provided.

Further Information

In the case of Kirkaldie v the Information Commissioner and Thanet District Council, the Tribunal decided that the information requested by the applicant was environmental, and that both the ICO and TDC were therefore incorrect in dealing with the request under the provisions of the FOIA rather than the EIR.

The information requested by the applicant was the legal advice the Council sought regarding the night flying policy at Kent International Airport.

The legal advice requested was, in fact, legal advice on the implications of proposed night-time flights on an existing agreement under s106 of the Town and Country Planning Act.

Section 106 of the Town and Country Planning Act provides that:

(1) A local planning authority may enter into an agreement with any person interested in land in their area for the purpose of restricting or regulating the development or use of the land, either permanently or during such period as maybe prescribed by the agreement.

(2) Any such agreement may contain such incidental and consequential provisions (including financial ones) as appear to the local planning authority to be necessary or expedient for the purposes of the agreement.

The Tribunal ruled that s106 agreements are “environmental agreements” as listed in reg 2(1)(c) (para.14). It also stated that entering into and extending a s106 agreement was the “sort of measure envisaged by the rule” expressed in reg 2(1)(c) (para.14)

Regulation 2(1)(c) defines environmental information as “measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements.”

Where a s106 agreement affects or is likely to affect the elements and factors... etc., it will be environmental information.

In this specific case, the Tribunal found that the elements covered by the agreement were land, air and atmosphere, and the factors covered are noise and emissions.

It also found that as provided by reg 2(1)(f), noise and emissions could affect the state of human health and safety.

The Tribunal did not offer an explanation or justification as to why legal advice on the implications of a s106 agreement (the information specifically requested) was environmental.

ICO View

For the ICO view of Kirkaldie and s106 agreements please see LTT82